People v. Whittle

NOTICE

This order was filed under Supreme 2020 IL App (4th) 170222-U

FILED

Court Rule 23 and may not be cited January 23, 2020

as precedent by any party except in Carla Bender

the limited circumstances allowed

NO. 4-17-0222 4th District Appellate

under Rule 23(e)(1). Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

v. ) Macon County

JON E. WHITTLE, ) No. 13CF410

Defendant-Appellant. )

) Honorable

) Thomas E. Griffith,

) Judge Presiding.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court.

Justices Knecht and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court granted counsel’s motion to withdraw because no meritorious

issue could be raised on appeal.

¶2 In January 2014, a jury found defendant, Jon E. Whittle, guilty of (1) being an

armed habitual criminal and (2) aggravated fleeing or attempting to elude a police officer. 720

ILCS 5/24-1.7(a) (West 2012); 625 ILCS 5/11-204.1(a)(1) (West 2012). The trial court later sen-

tenced him to prison for 24 years and 4 years, respectively, and ordered those sentences to be

served concurrently.

¶3 In December 2016, defendant pro se filed a postconviction petition in which he

argued that his trial counsel was ineffective. In March 2017, the trial court summarily dismissed

this petition, and defendant subsequently filed a notice of appeal. In April 2017, the Office of the

State Appellate Defender (OSAD) was appointed to represent defendant.

¶4 In February 2019, OSAD filed a motion to withdraw, asserting that no meritorious

issue could be raised on appeal. Defendant filed a response objecting to OSAD’s motion. We

agree with OSAD, grant its motion to withdraw, and affirm the trial court’s dismissal of defend-

ant’s petition.

¶5 I. BACKGROUND

¶6 A. Defendant’s Jury Trial and First Appeal

¶7 In January 2014, a jury found defendant guilty of (1) being an armed habitual

criminal and (2) aggravated fleeing or attempting to elude a police officer. 720 ILCS 5/24-1.7(a)

(West 2012); 625 ILCS 5/11-204.1(a)(1) (West 2012). At trial, the State’s key witnesses were

Jazmyne Milan, Rickeya Brown, Michael Claypool, and Gabrielle Simoneaux. (See People v.

Whittle, 2016 IL App (4th) 140336-U, ¶¶ 16-41, for a comprehensive review of the evidence pre-

sented at trial.)

¶8 Both Milan and Brown testified that on April 1, 2013, a black male driving a blue

SUV (sport utility vehicle) pointed a gun at them while they were stopped at an intersection. Mi-

lan testified that this vehicle’s license plate included the word “TOOTSR” on it. Milan stated that

she called the police after her vehicle pulled away from the intersection. Shortly thereafter, Of-

ficer Michael Claypool of the Decatur Police Department saw a blue SUV with a license plate

that included the word “TOOTSR.” After activating his emergency lights and siren, Claypool at-

tempted to pull over the vehicle, but it sped away. Eventually, the vehicle came to a stop. De-

fendant—a black male—was the driver of the vehicle.

¶9 Simoneaux testified that on April 1, 2013, she was riding in defendant’s vehicle

when defendant began speeding away from the police. She said that defendant was trying to

elude the police because he was riding “dirty.” She testified that defendant asked her to place

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two handguns into her purse and she complied with this request because she was scared. Simo-

neaux stated that defendant pulled over his vehicle after she put the guns in her purse.

¶ 10 Simoneaux conceded that she initially told the police that the guns were hers. She

also conceded that she had told defendant’s attorney prior to trial that the guns belonged to her

and that the police had pressured her into implicating defendant. However, Simoneaux testified

that she only approached defendant’s attorney because she received a threatening phone call.

Simoneaux admitted she was charged with a felony for possession of the firearms and faced four

years in prison if convicted. She pleaded guilty to the offense in exchange for four years of pro-

bation on the condition that she testify truthfully against defendant.

¶ 11 Ultimately, as noted above, the jury found defendant guilty. The trial court sen-

tenced defendant to 24 years in prison for being an armed habitual criminal, 4 years for aggra-

vated fleeing or attempting to elude a police officer, and ordered the sentences to be served con-

currently. Defendant appealed, arguing that the trial court erred by admitting improper other-

crimes evidence. This court affirmed defendant’s conviction. Whittle, 2016 IL App (4th) 140336-

U, ¶ 77.

¶ 12 B. Defendant’s Pro Se Postconviction Petition

¶ 13 On December 13, 2016, defendant pro se filed a postconviction petition, arguing

that his trial counsel was ineffective for failing to call Kioshe McGowan as a witness. In an affi-

davit attached to the petition, McGowan stated that “Simoneaux had approached me, of free will,

and confessed to owning one of the firearms Mr. Whittle was charged for ***.” He further stated

that defendant’s attorney “decided not to use my testimony ***.”

¶ 14 C. The Trial Court’s Ruling

¶ 15 On March 7, 2017, the trial court summarily dismissed defendant’s petition at the

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first stage. In pertinent part, the court reasoned as follows:

“Regarding the Defendant’s claims of ineffective assistance of trial coun-

sel, the Court finds that these claims do not form an arguable basis that counsel’s

performance fell below an objective standard of reasonableness and it is not argu-

able that the Defendant was prejudiced. [Citation]. The Court would note Ms.

Simoneaux did testify at trial that *** she approached [defendant’s attorney] ***

and informed him the guns belonged to her and that [the] police had pressured her

into stating the guns were the Defendant’s. [However,] Simoneaux explained that

she was pressured into doing this *** and after speaking with her own attorney

did not speak with [defendant’s attorney] again. *** There is therefore no basis

for Defendant’s assertion that Mr. McGowan’s testimony could have possibly

changed the outcome of the trial.”

¶ 16 D. The Notice of Appeal and the Request to Withdraw

¶ 17 Defendant subsequently filed a notice of appeal. In April 2017, OSAD was ap-

pointed to represent defendant. In February 2019, OSAD filed a motion to withdraw, asserting

that no meritorious issue could be raised on appeal. Subsequently, defendant filed a response to

OSAD’s motion to withdraw, arguing his petition stated the gist of a constitutional claim of inef-

fective assistance of counsel. The State then filed a brief asserting the trial court properly dis-

missed the petition, to which defendant filed a reply brief.

¶ 18 II. ANALYSIS

¶ 19 In this case, OSAD argues there are no meritorious issues to appeal because

(1) the trial court dismissed defendant’s petition within 90 days and (2) it is not arguable that de-

fendant’s trial counsel provided ineffective assistance. Defendant argues only that the petition

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stated the gist of a claim of ineffective assistance because his attorney failed to call McGowan to

corroborate Simoneaux’s prior inconsistent statements. The State, as well as OSAD, argues the

trial court did not err by dismissing the petition because defendant cannot demonstrate he was

prejudiced by counsel’s performance. We agree with OSAD, grant its motion to withdraw, and

affirm the trial court’s order.

¶ 20 A. The Applicable Law

¶ 21 The Post-Conviction Hearing Act (Act) provides a criminal defendant the means

to redress substantial violations of his constitutional rights that occurred in his original trial or

sentencing. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS

5/122-1 (West 2016). The Act contains a three-stage procedure for relief. People v. Allen, 2015

IL 113135, ¶ 21, 32 N.E.3d 615; 725 ILCS 5/122-2.1 (West 2016). At the first stage, within 90

days of the petition’s filing, the trial court must independently determine whether the petition is

“frivolous or patently without merit ***.” 725 ILCS 5/122-2.1(a)(2) (West 2016). “At this stage,

the petition need present only a limited amount of detail so as to set forth the gist of a meritori-

ous constitutional claim.” People v. Clark, 2011 IL App (2d) 100188, ¶ 15, 957 N.E.2d 162. The

trial court must dismiss the petition if it concludes that the petition is frivolous or patently with-

out merit. People v. Johnson, 401 Ill. App. 3d 685, 691, 930 N.E.2d 462, 468 (2010); 725 ILCS

5/122-2.1(a)(2) (West 2016). “Conversely, if the trial court finds the petition is not frivolous or

patently without merit, or if the court does not take action on the petition within 90 days of its

filing, the proceedings move on to the second stage.” Johnson, 401 Ill. App. 3d at 691; 725 ILCS

5/122-2.1(b), 122-4 (West 2016).

¶ 22 The sixth amendment guarantees a defendant the right to effective assistance of

counsel at all critical stages of a criminal proceeding. U.S. Const., amend. VI; People v. Hughes,

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2012 IL 112817, ¶ 44, 983 N.E.2d 439. “At the first stage of postconviction proceedings under

the Act, a petition alleging ineffective assistance may not be summarily dismissed if ([1]) it is

arguable that counsel’s performance fell below an objective standard of reasonableness and ([2])

it is arguable that the defendant was prejudiced.” People v. Hodges, 234 Ill. 2d 1, 17, 912 N.E.2d

1204, 1212 (2009).

¶ 23 This court is highly deferential to counsel’s performance because there “are

countless ways to provide effective assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.” Strickland v. Washington, 466

U.S. 668, 689 (1984). Further, the defendant must overcome the strong presumption that the

challenged action or inaction may have been sound trial strategy. People v. Sturgeon, 2019 IL

App (4th) 170035, ¶ 83, 126 N.E.3d 703. “Decisions concerning which witnesses to call at trial

and what evidence to present on defendant’s behalf ultimately rest with trial counsel.” People v.

Wilborn, 2011 IL App (1st) 092802, ¶ 79, 962 N.E.2d 528. “It is well established that these types

of decisions are considered matters of trial strategy and are generally immune from claims of in-

effective assistance of counsel.” Id.

¶ 24 “To establish prejudice, a defendant must show that, but for counsel’s errors,

there is a reasonable probability that the result of the proceeding would have been different.”

Sturgeon, 2019 IL App (4th) 170035, ¶ 84. “[A] reasonable probability that the result would have

been different is a probability sufficient to undermine confidence in the outcome—or put another

way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamen-

tally unfair.” People v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939, 953-54 (2004).

¶ 25 The trial court’s dismissal of a postconviction petition at the first stage is re-

viewed de novo. People v. Boykins, 2017 IL 121365, ¶ 9, 93 N.E.3d 504. Likewise, claims of

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ineffective assistance of counsel are reviewed de novo. People v. Westfall, 2018 IL App (4th)

150997, ¶ 64, 115 N.E.3d 1148.

¶ 26 B. This Case

¶ 27 We first conclude that it is not arguable that counsel’s performance was unreason-

able. See Hodges, 234 Ill. 2d at 17. At defendant’s trial, Simoneaux admitted that she initially

told the police that the guns were hers. She also conceded that she told defendant’s attorney prior

to trial that the guns belonged to her and that the police pressured her into implicating defendant.

Accordingly, because of Simoneaux’s concessions, counsel could have reasonably concluded

that McGowan’s expected testimony would be unnecessarily cumulative. Further, counsel may

have found McGowan to be an uncooperative or unreliable potential witness. Indeed,

McGowan’s affidavit stated Simoneux “confessed to owning one of the firearms” (emphasis

added), potentially undermining defendant’s claim that he did not possess any firearm at all. Fi-

nally, “[d]ecisions concerning which witnesses to call at trial *** ultimately rest with trial coun-

sel” and “are generally immune from claims of ineffective assistance of counsel.” Wilborn, 2011

IL App (1st) 092802, ¶ 79. Counsel’s decision not to call McGowan in this case was clearly a

matter of trial strategy and, therefore, immune from challenge.

¶ 28 In the alternative, we conclude that it is not arguable that defendant was preju-

diced by counsel’s actions. See Hodges, 234 Ill. 2d at 17. Both Milan and Brown testified that on

April 1, 2013, a black male driving a blue SUV pointed a gun at them. Milan testified that she

called the police and that the vehicle’s license plate included the word “TOOTSR.” Officer Clay-

pool saw a blue SUV that matched Milan’s description and included the word “TOOTSR” on its

license plate. Defendant—a black male—was the driver of this vehicle. Claypool tried to pull

over this vehicle, but it sped away. Simoneaux also testified that on April 1, 2013, she was riding

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in defendant’s vehicle when he began speeding away from the police. She said that defendant

asked her to place two handguns into her purse. She stated that she complied with this request

because she was scared and that defendant pulled over his vehicle after she put the guns in her

purse.

¶ 29 In essence, notwithstanding the weaknesses of Simoneaux’s testimony, the evi-

dence against defendant was overwhelming. Further, Simoneaux openly admitted that she origi-

nally told the police and defendant’s attorney that she was the owner of the guns. The jury was

well informed of Simoneaux’s inconsistent statements and various motives to testify favorably

for the State. Thus, there is no basis for defendant’s argument that McGowan’s testimony could

have possibly changed the outcome of the trial. For that reason, we conclude that it is not argua-

ble that defendant was prejudiced by counsel’s actions.

¶ 30 Finally, because the trial court dismissed defendant’s petition within 90 days of it

being filed, defendant’s petition was not automatically required to be advanced to the second

stage. Johnson, 401 Ill. App. 3d at 691.

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we agree with OSAD that no meritorious issue could be

raised on appeal. We therefore grant OSAD’s motion to withdraw as appellate counsel and af-

firm the trial court’s dismissal of defendant’s postconviction petition.

¶ 33 Affirmed.

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